Plaintiff
Hayes Oyster Company brings this action against Defendants
Oregon Department of Environmental Quality
(“DEQ”) and Richard Whitman in his official
capacity as DEQ’s interim director (collectively
“Defendants”). Plaintiff asserts claims for
public nuisance; unjust taking under Article I, Section 18 of
the Oregon Constitution; and unjust taking under the Fifth
Amendment of the United States Constitution. Defendants now
move to dismiss Plaintiff’s claims pursuant to Federal
Rules of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, and alternatively under Rule 12(b)(6) for
failure to state a claim for relief.

For the
reasons set out below, Defendants’ Rule 12(b)(1) motion
is granted. Having concluded that this Court lacks
jurisdiction to hear the case, it is neither necessary nor
appropriate to rule on the alternative motion. Ex parte
McCardle, 74 U.S. 506, 514 (1868).

Factual
Background

According
to Plaintiff’s Complaint, Plaintiff holds six hundred
acres of oyster plats located in Tillamook Bay, Tillamook
County, Oregon. Plaintiff holds these acres in accordance
with leases administered by the State of Oregon and by right
in accordance with Oregon law.

Defendant
DEQ regulates commercial oyster culture and harvesting
according to its Tillamook Management Plan for Commercial
Shellfish Harvesting. Defendant DEQ’s Management Plan
is designed to ensure compliance with the U.S. Food and Drug
Administration’s National Shellfish Sanitation Program
(“NSSP”) standards for commercial shellfish
harvesting. The NSSP sets standards for fecal coliform
bacteria in shellfish growing waters.

In
addition to the NSSP standards, the State of Oregon has a
duty under 33 U.S.C. § 1313(d)(1)(C) to establish a
Total Maximum Daily Load (“TMDL”) for bacteria,
including fecal coliform, in the Wilson River, the Trask
River, the Tillamook River, and Tillamook Bay. Defendant DEQ
established a TMDL for the Tillamook Watershed in 2001.

TMDLs
allocate the amounts of pollutants, including fecal coliform,
that sources in the watershed are allowed to discharge. TMDL
allocations cover two types: wasteload allocations and load
allocations. Wasteload allocations relate to point sources of
pollution and guide the development of discharge limits set
in National Pollutant Discharge Elimination System
(“NPDES”) permits. Load allocations relate to
nonpoint sources and guide targets that dairy farm manure
management practices are designed to meet.

Plaintiff’s
Complaint takes issue with the way that the Tillamook
Watershed TMDL determines wasteload allocations and load
allocations. First, Plaintiff alleges that Defendant DEQ
established wasteload allocations for NPDES permitted
dischargers in the Tillamook Watershed with the understanding
that water quality standards for growing shellfish would be
met in portions of Tillamook Bay while they would not be met
in other portions of Tillamook Bay.

Second,
Plaintiff alleges that Defendant DEQ adopted a “zero
(load) allocation” for dairy farms operating pursuant
to specific permits, based on the assumption that these
permits prohibited pollutant discharges to surface water from
the land application of manure. But dairy farms’ land
application of manure is not prohibited provided that the
application is done in accordance with an approved Animal
Waste Management Plan.

Therefore,
according to Plaintiff, the wasteload allocations for NPDES
permitted dischargers in the Tillamook Watershed are not
reasonably calculated to attain compliance with the water
quality standard for all shellfish growing waters in
Tillamook Bay, and the zero load assumption does not meet
Defendant DEQ’s duty under federal law. Plaintiff
further alleges that Defendant DEQ’s 2001 TMDL for the
Tillamook Bay Watershed does not meet the TMDL standard set
out in 33 U.S.C. § 1313(d)(1)(C).

Plaintiff
brings the following claims against Defendants, all stemming
from Plaintiff’s theory that Defendants have failed to
regulate pursuant to their duty under federal law: public
nuisance; unjust taking under Article I, Section 19 of the
Oregon Constitution; and unjust taking under the Fifth
Amendment of the United States Constitution.

Defendants’
motion for lack of subject matter jurisdiction is granted
because: (1) Plaintiff’s Fifth Amendment claim is
barred as unripe given that Plaintiff has not first sought
compensation in state court; (2) Plaintiff’s claims are
barred by Eleventh Amendment sovereign immunity as Defendants
have not impliedly or explicitly waived their sovereign
immunity; (3) Plaintiff may not seek injunctive relief in
this court using its state law claims given that they are
state law claims and Defendants’ sovereign immunity
covers such claims; and, (4) even if the state law claims had
survived Eleventh Amendment scrutiny, they do not establish
federal question jurisdiction under Gunn v. Minton.
133 S. Ct. 1059, 1065 (2013).

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